Questions and Answers on the Mercury Export Ban Act (MEBA) of 2008

Purpose and Summary of the Law

1. What is the Mercury Export Ban Act intended to do?

The Mercury Export Ban Act (PDF)Exit(8 pp, 166K) (MEBA), which became law on October 14, 2008, is intended to reduce the availability of elemental (metallic) mercury in domestic and international markets. By reducing the supply of elemental mercury in commerce, the Act aims to reduce the use of mercury in artisanal mining and for other commercial purposes globally. The Act does this by prohibiting the export of elemental mercury as of January 1, 2013. It also requires the Department of Energy (DOE) to designate and operate a facility (or facilities) for long-term management and storage of elemental mercury generated in the United States. The Act also prohibits the transfer of elemental mercury held by federal agencies as of the date of enactment. This controls the flow of elemental mercury in the domestic market.

2. How does the ban on elemental mercury sales or other transfers (except transfers to facilitate storage) by federal agencies affect federal stockpiles?

The largest holders of elemental mercury in the United States are the Department of Defense and the Department of Energy. The policy of each department (prior to enactment of MEBA) was to store, rather than sell, its surplus elemental mercury. MEBA codifies these policies, ensuring that the federal stockpiles of elemental mercury will remain in storage. The Act prohibits the sale, distribution, and transfer of elemental mercury held by federal agencies.

3. What are the principal provisions of MEBA?

MEBA amends the Toxic Substances Control Act (TSCA) to prohibit the export of elemental mercury from the United States effective January 1, 2013. MEBA also:

Prohibits the sale, distribution, or transfer of elemental mercury under the control or jurisdiction of federal agencies to any other federal, state, or local government agency or to any private individual or entity, except for the transfer of elemental mercury to facilitate storage under MEBA, or the transfer or leasing of coal.

Authorizes EPA to provide limited essential use exemptions by rule for the export of no more than 10 metric tons of elemental mercury under specified conditions.

Requires EPA to publish a Report to Congress by October 14, 2009, on mercury compounds that may be used in significant quantities in products or processes. View the report.

Requires the storage facility to accept custody, for the purpose of management and storage, of elemental mercury generated within the United States and delivered to the facility.

Specifies that persons who deliver elemental mercury to the storage facility are indemnified against any liability related to the release or threatened release of mercury after delivery to the facility.

Requires EPA or an authorized state to issue a final decision on a RCRA permit application for a DOE facility by January 1, 2015.

Requires EPA to send to Congress by January 1, 2017, a report on the global supply and trade of elemental mercury, including mercury from primary mining.

4. What is the intent of these questions and answers?

These questions and answers provide general guidance to EPA and to affected parties. While the requirements of MEBA itself are binding on EPA and affected parties, these questions and answers are only guidance and are not binding on EPA personnel, other federal agencies or the public. EPA may depart from the guidance where circumstances warrant and without prior notice.

Mercury Affected by the Export and Transfer Bans

5. MEBA covers elemental mercury but not mercury compounds. How is elemental mercury different from mercury compounds?

Elemental mercury is an element that has not reacted with another substance. When mercury reacts with another substance, it forms a compound. Elemental mercury and mercury compounds have their own unique chemical properties, physical properties, and chemical structure. Some common mercury compounds are mercury chloride, mercury oxide, and methylmercury.

6. Is the term "elemental mercury" limited by the definition of "chemical substance" under section 2602 of TSCA?

No. MEBA amended TSCA to add sections 2605 and 2611 to Title 15 of the U.S. Code with provisions that relate to "elemental mercury." MEBA did not amend the definitions section in TSCA and there is no explicit relationship between the terms "elemental mercury" and "chemical substance." Therefore, the term "elemental mercury" is not limited by the definition of "chemical substance" under TSCA. The definition of "chemical substance" under TSCA lists several exclusions such as pesticides, foods, drugs or medical devices. See U.S. Code Title 15, section 2602. As "elemental mercury" is used in MEBA, it is not limited by these exclusions.

7. Can you provide examples of what is subject to the MEBA export ban and federal agency transfer ban?

The findings set forth in MEBA and the legislative history both provide numerous examples of what Congress meant to be covered by the bans. For example, the findings section of MEBA describes quantities of elemental mercury that are exported from and imported to the United States and action proposed by the European Commission on the export of elemental mercury. Further, the Senate Report on the Act states that "elemental mercury can be generated through recycling products and waste recovery programs," S. Rep. No. 110-477 (2008) (PDF)(19 pp, 131 K, About PDF) (at page 10), and refers to the mercury that the Department of Defense and Department of Energy have already been storing. (Id. at page 9.) However, neither MEBA nor the legislative history specifies any purity requirement or limitation for what is covered by the bans.

9. Can you provide examples of what is not subject to the MEBA bans?

As stated above, MEBA applies to elemental mercury, not mercury compounds. In addition, based on the intent of the legislation, and the Act's findings and legislative history, EPA does not believe the materials listed below, for example, generally fall within the scope of the export and federal agency transfer bans:

products (consumer and non-consumer), including discarded products

dental amalgam (pre-dosed capsule form)

scrap metal and used electronics

media (including groundwater, surface water, soils and sediment) and debris that are managed for implementing cleanup

reference materials in which the mercury occurs as contamination in media (e.g., soil, sediment, water, sludge);

industrial, commercial and remediation residuals

byproducts of coal combustion.

Note, however, that EPA believes that any export of materials containing elemental mercury, including in the above examples, with the intent to recover the elemental mercury for resale or reuse would be banned. This is consistent with the purposes of MEBA.

In addition to the examples above, MEBA specifically excludes from the bans transfer and export of coal, which may contain elemental mercury.

No. EPA believes the primary purpose of the federal agency transfer ban is to ensure that federal agencies retain their stockpiles of excess elemental mercury. As discussed in the answer to the question "Can you provide examples of what is not subject to the MEBA bans?", EPA does not believe that the transfer ban applies to, for example, discarded products or media. Thus a federal agency's waste management practices to comply with RCRA regulations will not be affected. Further, under RCRA, once the discarded products or media are sent to a recycler, the mercury is no longer under the control or jurisdiction of the federal agency and thus the federal agency transfer ban does not apply. But, this recovered elemental mercury from such recycling would be subject to the export ban.

11. Could someone mix something into his or her mercury so it is less pure and could be exported?

Because mixtures containing elemental mercury are also subject to the ban, EPA believes that mixing elemental mercury with another substance with the purpose of evading the ban would not be effective. This is because a subsequent export of the mixture would still remain an export of elemental mercury and would violate the export ban.

12. What criteria would be used to determine whether to grant an essential use exemption from the export ban?

13. Can elemental mercury still be imported?

Storage of Mercury

14. Will the DOE facility accept all elemental mercury that is covered by the export and transfer bans?

No. The Act states that DOE shall accept custody of elemental mercury generated within the United States. In addition, the Act authorizes DOE to establish terms and conditions for the long-term management and storage of elemental mercury. DOE has indicated that elemental mercury to be stored at the DOE facility or facilities must be of a purity of 99.5 percent or greater by volume. Therefore, elemental mercury of lower purity would need to be further refined before it could be stored at the DOE facility (or facilities), but export or federal agency transfer of such mercury is still prohibited.

15. To whom does the long-term storage provision apply – public organizations, private organizations, or both?

If the elemental mercury has been generated within the United States, then any public or private organization or individual will be able to transfer elemental mercury to DOE for long-term storage within the parameters of the storage program, including payment of fees as described in section 5(b) of the Act (PDF)(8 pp, 166 K, About PDF).

16. How does MEBA affect the Resource Conservation and Recovery Act (RCRA) or the regulations under that act?

MEBA does not affect RCRA or RCRA regulations, with the exception that elemental mercury stored at the DOE facility, or elemental mercury that is destined for the DOE facility and accumulated for 90 days or less, is not subject to the RCRA storage prohibition, 3004(j) of the Solid Waste Disposal Act(163 pp, 420 K, About PDF).

17. Is elemental mercury destined for the DOE storage facility or facilities considered a hazardous waste?

Yes. EPA believes the elemental mercury sent to the DOE facility is discarded and thus constitutes a solid waste. Because the elemental mercury is a solid waste and is also classified as a hazardous waste under EPA's regulations, it is considered a hazardous waste under RCRA subtitle C (PDF)(163 pp, 420 K, About PDF). The decision to deliver elemental mercury into DOE storage is considered discard because a decision was made by the generator to place that mercury into indefinite storage and not to use it or sell it domestically.

18. Since the elemental mercury going to the DOE facility is a hazardous waste, will it need to be manifested and otherwise managed as a hazardous waste during transport to DOE?

19. After the export ban takes effect, will storage of elemental mercury be mandatory?

No. Transfer to DOE's facility or facilities will be voluntary. Anyone who chooses to manage his own elemental mercury may do so, but he will be potentially responsible for any damage or injury it may cause.

20. After the export ban, if elemental mercury is not sent to the DOE facility or facilities, will it be considered a hazardous waste?

Under RCRA regulations, elemental mercury that is being used or stored for reuse is not considered a waste. However, if elemental mercury were no longer to have a commodity value, it could be considered discarded and therefore a solid waste. (See 40 CFR 261.2)

21. Can chlor-alkali plants continue to store their mercury on-site?

Yes. The elemental mercury that chlor-alkali facilities store on-site remains a commercial chemical product and its storage is not barred by federal environmental statutes as long as it is not discarded. This is the case whether the facility continues to operate a mercury cell process, converts to a non-mercury process, or shuts down the plant. However, state or local restrictions may apply. After the establishment and operation of the DOE facility, mercury being stored at chlor-alkali plants can continue to be stored as a product. However, if storage continues over a long period of time, or if the supply of commodity-grade mercury exceeds domestic demand, EPA may assess on a case-by-case basis the legitimacy of a claim that elemental mercury storage does not constitute discard.

22. What incentive will elemental mercury holders have for paying the Department of Energy to store and manage elemental mercury instead of storing it themselves?

Mercury is highly toxic and if it spills, leaks, volatilizes or is otherwise released to the air, water, or land, the owner may be held liable for injury or damage to human health.